' This appeal is directed against the judgment passed by the learned Additional Sessions Judge on 10-3-1987 whereby both the appellants namely Habib-ur-Rehman and Faiz Muhammad Khan were convicted under section 193, P.P.C. and sentenced to undergo three months' R.I. each and also to pay a fine of Rs,5,000 each and in default of payment of fine they were ordered to suffer further R.I. for one month each.
2. The brief facts of the case are that one Matee-ur-Rehman a convict under section 3 of the Prohibition (Enforcement of Hadd) Ordinance, 1979 filed an appeal against his conviction dated 25- 2-1987 before the learned Additional Sessions Judge along with an application under section 426, Cr.P.C. for the suspension of sentences. This application was accepted and Matee-ur Rehman was admitted to bail on his furnishing bail bonds in the sum of Rs,5,000 with one surety in the like amount. Habib-ur-Rehman appellant filed bail bonds as the surety of Matee-ur-Rehman wherein he described himself as the owner of 20 Kanals of land besides the houses and ornaments. These bail bonds were attested by Faiz Muhammad Khan appellant No,2 Lambardar. The learned Additional Sessions Judge recorded the statements of both the appellants on 1-3-1987 wherein Habib-ur-Rehman stated that he was owner of 20 Kanals and on his statement the bail bonds were accepted with a direction to them to produce "Fard Jamabandi" of the ownership of Habib- ur-Rehman on 10-3-1987. On 10-3-1987 they could not produce the copies of Fard Jamabandi owned by Habib-ur-Rehman but made a separate statement on oath that Habib-ur-Rehman did not own any land and that they had made false statements in the Court on 1-3-1987 during judicial proceedings. Both the appellants were served notices as to why they intentionally made false statements on oath in Court during judicial proceedings and that why they should not be punished for intentionally given false evidence in the Court during judicial proceedings on which both the appellants confessed that they made false statements and requested for apology. Their separate statements were also recorded. In view of the confession made by the appellants, both were found guilty under section 193, Cr.P.C. and were sentenced to undergo three months' R.I. each and also to pay a fine of Rs,500 each, and in default of payment of fine they were ordered to further suffer R.I. for one month each.
3. It may be mentioned here that at the very outset learned counsel for the appellants informed this Court that Habib-ur-Rehman appellant No,1 has died, and as under the law the act of the man in a criminal case dies with the man concerned, so his appeal stands abated. This fact is accepted by the learned counsel for State. I, therefore, order accordingly.
4. Learned counsel for Faiz Muhammad appellant has contended that his statement cannot be termed as a confessional statement as he being assured of by Habib-ur-Rehman surety that he was the owner and he made a statement on oath in the Court in his presence so this being indiscretion does not amount to an offence under the Penal Code. He vehemently argued that no charge was framed against the accused under the law as provided under section 242, Cr.P.C. so the whole proceedings are illegal and the trial vitiates.
5. Conversely the learned counsel appearing on behalf of the State contended that when the appellant had confessed the offence then there was no need to frame the charge, hence the trial is not vitiated.
6. I have given my earnest consideration to the arguments advanced by both the parties and find that under section 476, Cr.P,C. if any offence referred to in section 195, subsection (1) clause (b) or clause (c) is committed in or in relation to, a proceeding in any Civil, Revenue or Criminal Court, the Court may take cognizance of the offence and try the same in accordance with the procedure prescribed for summary trials in Chapter XXII.
' In section 262 under Chapter XXII it is laid down that in trials under this Chapter, the procedure prescribed in Chapter XX shall be followed except as hereinafter mentioned. Subsection (2) lays down that no sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter.
7. Section 242, Cr.P.C. under Chapter XX runs as under:-- "When the accused appears or is brought before the Magistrate, a formal charge shall be framed relating to the offence of which he is accused and he shall be asked whether he admits that he has committed the offence with which he is charged."
' On the basis of the provisions contained in section 242, Cr.P.C. learned counsel argued that it is a mandatory provision to frame a formal charge against the accused relating to the offence which he has allegedly committed and if the charge is not framed the trial vitiates. Ordinarily the rule, undoubtedly, is that the accused cannot be convicted of any offence with which he is not charged, although there are two exceptions to this rule which are contained in sections 237 and 238, Cr.P.C. but those are not applicable in this case.
' As the framing of charge is mandatory provision, so the same is not remediable under section 537, Cr.P.C. because under this section, only on the basis of any error, omission or irregularity in the charge, the judgment cannot be reversed but in this case the charge has not been framed.
8. I also find that in subsection (2) of section 262, Cr.P.C. the maximum sentence provided in a summary case is three months and not exceeding that. The learned trial Court awarded three months' R.I. to the appellants after taking the lenient view due to their confession but he ignored this provision of law and awarded the maximum sentence.
9. Resultantly the position is that the appellants could not have been convicted of the offence under section 193, P.P.C. so long as they were not charged with the same offence and without framing the charge the trial vitiates, so the appeal is allowed and the conviction and sentence awarded against appellant No,2 is set aside.